September 28, 2021

Volume XI, Number 271

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September 27, 2021

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Unprofessional and Unnecessary: TCPA Defendant’s Rush to Seek Sanctions Against Plaintiff Pretty Much Backfires Completely

Anytime a ruling starts with a phrase like “[t]he practice of law is not just a job, it is a profession” you know somebody misbehaved.

Usually—in my experience at least—that somebody is a Plaintiff or a belligerent Plaintiff’s counsel. But non-professional behavior is not solely the province of dark-side lawyers—it sometimes manifests on the nobler side as well.

Take Babare v. Sigue Corp., CASE NO. C20-0894-JCC; CASE NO. C21-0114-JCC, 2021 U.S. Dist. LEXIS 137322 (W.D. Wash.  July 22, 2021) for instance.

There a Defendant moved swiftly to sanction a Plaintiff for serving discovery before a Rule 26(f) conference took place. It did so, apparently, without attempting to meet and confer with the Plaintiff about the problem and despite the fact that: i) a rule 26(f) does not need to take place to serve the RFPDs Plaintiff served; and ii) a rule 26(f) conference did take place, at least in the Plaintiff’s view. Nonetheless, Defendant argued to the Court that it “must” sanction Plaintiff for serving premature discovery demands.

The court was not amused:

It is rarely a good idea for a litigant to tell a court what it “must” do, even if the litigant is correct, but it is particularly ill-advised when the litigant is not.

Eesh.

So much eesh.

The court makes short work of the Defendant’s sanctions request, finding that the Plaintiff was substantially justified in serving the discovery demands in that RFPDs can be served pre-Rule 26(f) and given that Plaintiff reasonably believed a Rule 26(f) conference had taken place. (Side note: this is why you should avoid discussing cases informally with plaintiff’s counsel without an agreement that the discussion will not qualify as a Rule 26(f).)

Then things really get dark:

“The closest question is whether the Court should sanction [Defendant], as Mr. Babare requests. The Court agrees with Mr. Babare that [Defendant]’s rush to seek sanctions was particularly [word omitted but it was probably “inappropriate” given the context] because, as far as the record discloses, [Defendant’s] counsel did not make a good-faith effort to meet and confer or to resolve the issue by taking actions short of seeking sanctions, such as by moving for a protective order or by refusing to respond to the requests until after the parties had what [Defendant] viewed as an appropriate Rule 26(f) conference.”

The court goes on to advise Defendant’s counsel—who was pro hac admitted—that the rules require professionalism, and their behavior in the case was not cutting it.

Nonetheless the Court denies sanctions against the Defendant and the parties are sent on their merry way.

The take away here is pretty clear—don’t rush to seek sanctions just because you’re annoyed that Plaintiff engaged in a perceived minor error (and by all means don’t rush to seek sanctions where the Plaintiff may not have made an error to begin with.)

Sanctions are certainly appropriate at times—and we seek them with some regularity where egregious conduct occurs (such as the violation of a Rule 26(g) certification in class discovery)—but ticky tack stuff rarely flies as a basis for a sanction request. And as Babare demonstrates—when you point one finger you may have three fingers pointing back at you.

Stay classy TCPAworld.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 207
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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